Antidotes to Powerlessness, Part 1: Who Can Spank Whom?

by Mary W Maxwell, LLB

While campaigning for the US Senate in Alabama this month I have frequently said from the podium: “The Constitution is a miracle.” Yes, it is. Too bad we have CNN all day, every day, trying to make us feel that we are but spectators of what’s going on in Washington and that only the high mucky-mucks are the players. Wrong-o, CNN, and you’ll be in for a surprise when you get indicted by a Citizen Grand Jury.

Hilariously (I don’t mean Hilleriously, but we’ll get to that), the talk is all about Trump implying that he wants rid of his Attorney General, Jeff Sessions.  I’ll bet he doesn’t want rid of him. (Trump said he wished he’d known his AG planned to pull a recusal over the “Election interference investigation,” he’d have picked somebody else.).

I’m very annoyed that my fellow Americans seem to believe that there is danger lurking for the prez, because of Trump’s collusion with Russia, or his firing of Comey, or his finance ethics. Oh come on, Everybody, attend to the parchment, will you?

Parchmentary Power Allocations

The first thing you’ve got to know about the US Constitution, produced in Philadelphia in 1787, is that it was agreement among state delegates (55 of them, from the 13 states) to allocate “only a few powers” to the new nation’s federal government and keep most for the states. OK, got that?

So the 55 Framers didn’t sit there imbuing the presidency with great power.

So whom did they imbue with a preponderance of power? Why, the people of course – via their elected reps in Congress. All you really have to know is that Congress can impeach members of the other two branches – yes, even the judiciary, and of course the executive – but those other two branches can’t sack a Congressman.

Although impeachment does not send a person to jail, it takes away their power – that’s all the Framers were working on: power allocation.

Who Has Immunity from Criminal Charges?

As for accountability for committing a crime, there is no special federal power for charging a government person with a crime. Why? Is it because the Framers did not expect criminality? Not on your Nellie – Madison and the others were FAR MORE SOPHITICATED than we are today about human nature. They had “sin” on the brain.

There are many ways any president could be charged with a crime. In England the Queen cannot be charged with a crime. Period. Everybody else is chargeable. We sometimes hear that the Treaty of Vienna gave ambassadors a free ticket if they are caught in crime. All that means is that heads of state find it embarrassing to arrest an ambassador, and prefer to escort him to the nearest flight out. He is not truly immune, despite the phrase “diplomatic immunity.”

There is something called “qualified immunity” but it has only to do with civil actions not criminal charges.  My June 21^st Gumshoe article about Mueller and Ashcroft said that the US Supreme Court gave those two men “qualified immunity,” but this wasn’t in regard to criminality. Ziglar had sued for compensation the for mistreatment he received in prison.

I believe SCOTUS was correct to let Ashcroft and Mueller off the hook. Officials have to be free to make policy without worrying they might lose their house and bank account. One more type of immunity from criminal charges is that which a court voluntarily gives to a person in exchange for information. In a June 23 article I recommended giving immunity to John Podesta if he will cough up the names of the pedo-gate organizers.

The Latest Media Game re Trump, Sessions, and Mueller

I don’t want to spend precious time refuting untrue claims by the media, but in a word here is the scoop on the media’s claim that if the president fires Mueller, Trump will be obstructing justice. (Funny how all these years when there has been loads of opportunity for the media to identify obstruction of justice, nobody said nuttin.)

I agree it looks bad when a person who can control his own fate uses sneaky means to do so. The law maxim about this is “Nemo judex in causa sua” – no man should be a judge in his own case. But Trump is not technically capable of preventing anyone from bringing charges against him.  Mueller’s replacement could do it.

As for Sessions, I need not defend him. He seems to me to be as straight as a die. At his hearings (do you recall the Dianne Feinstein fusillade? Man, these shows are entertaining!) he said he was legally required to recuse himself because he had participated in the campaign that was under investigation.

Today Trump tweeted that he is disappointed that Sessions has not gone tough on Hillery. What? Does Mr President not know he can order the AG to do that? Somebody better give him a user’s manual. It could start with this quote form Article II, section 1:

Article II. 1:  Before he enter on the Execution of his Office, [the President shall say] “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

The Spanking Power

As stated, the Framers protected us by giving us, the people, the impeachment power to overthrow a tyrant in the White House. I don’t think we have had any tyrants – I think many ill-willed men have held that office , but they were smart enough to play it sweet in public. Some, however, were major, major criminals.

So let’s say there is bad behaviour in the executive branch. A Treasurer could pilfer the funds, a Pentagon chief could make private war, a president could sell secrets to the enemy — whatever. Is there anything in place to curtail this?

Of course, there is the ordinary, run of the mill police constable who could make an arrest. I know of no protection of any US citizen against police arrest. Sure there are “understandings” just like the ones for ambassadors.

I have been told that local police are instructed to hold back whenever a drunk driver or speeder flashes his wallet showing a VIP badge. This is very bad, and it teaches the cop that her job is not to protect the community but to make life easy for certain individuals.

Anyway, you as a member of the public can always go to a police office and file a criminal complaint. People have simply forgotten their role as protectors of one another!

Grand Juries

Now let’s bring up the matter of TROUBLE IN INDICTMENT CITY. In the early days of America the people of a given district formed a Grand Jury and were empanelled for 2 years. (Grand mean only “large” – 24 members, unlike the petit jury of 12 that tries a case.)

The citizen on the grand jury could report to his panel anything he saw, or that he was informed about, that looked criminal. (He was also responsible for reporting broken bridges.)

The grand jury, using the authority of the state, could then summon the suspect, and perhaps witnesses, for questioning. This must be done without publicity as the allegation about a person may have been malicious, and you never get your full reputation back once there has been innuendo.

Anyway, indictments come from society, not from politico’s. That is how it should work if we wish to retain control over officials.

The Fall and Rise of the People’s Grand Jury

The feds in their typical arrogant way have sabotaged this system. Wait, the state authorities have too, but I am talking about the feds. DoJ staff, such as US Attorneys, now treat members of grand juries as if they are to take instruction from the government. Frankly, Atty Gen Sessions ought to put a stop to this. It is outrageous.

Note: the brilliant Bill Windsor says if your state obstructs Grand Juries this way, you should go to court to get an injunction against the practice. I think you could also waltz into a US District Court (don’t bother with the corrupt one in Assachusetts) and file a pro se lawsuit with the same request for injunction.

(If you want my jailhouse-lawyer type assistance I’ll give it. I ADORE citizen-based prosecutions. These pro se things only cost 400 clams, or nothing if you are impoverished.)

Now think about this. The persons who are sabotaging the Grand Jury system are probably committing the crime of obstruction of justice.  Therefore, THEY need to be indicted for that. Yay!

Happy Ending?

There are other solutions to the problems mentioned above that we can discuss later in this series “Antidotes to Powerlessness.”. For now, it’s enough to say that the indictment procedure is a stumbling block to justice. But a citizen grand jury – however informally convened, in whatever state or combination of states – could be the means to get past that impasse. Please work on that.

Meanwhile, don’t fret about the so-called difficulty of indicting the president.No doubt the allegations being made by the media are false – the mainstream wouldn’t know truth if it tripped over it. But if Trump does needs indicting, the AG can do it, and will do it. Attorney General Jeff Sessions knows precisely who can spank whom, and all the relevant sub-clauses.

He loves the law, and when one loves the law, all sorts of astonishing things can happen.

Mark my words.

–Mary Maxwell fancies herself a future senator. See www.MaxwellForSenate.com. Or, if that don’t work out, maybe a future attorney general.